United States:
Social Media And The NLRB (Part 3): Discipline And Discharge – The Breadth Of Concerted Activity

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Activity is concerted if it is "engaged in with
or on the authority of other employees, and not solely by and on
behalf of the employee himself." This includes
individual action if the employee "seeks to initiate, induce
or prepare for group action" or raises "group complaints
to the attention of management." In fact, a mere
"conversation may constitute concerted activity, even though
it involves only a speaker and a listener," as long as
"it had some relation to group action in the interest of
employees," according to National Labor
Relations Board (NLRB) in Meyers Industries, Inc.

The nature and breadth of this definition has significance to
social media, which frequently involves on-line conversations about
work between employees who are social media
"friends."

Though the scope of concerted activity is broad, businesses can
sometimes rely on countervailing rules often applicable in the
social media context to manage their workplaces and avoid potential
liability. For example, under the NLRB's decision in Atlantic Steel Co., "even an
employee who is engaged in concerted activity can, by opprobrious
conduct, lose the protection" of the National Labor Relations
Act (Act). Whether the employee has crossed the line depends
on the following:

The location of the conduct and statements.

The subject matter of the conduct and statements.

The nature of the employee's outburst.

Whether the outburst was provoked by the employer's unfair
labor practice.

As the NLRB also explained in Valley Hospital Medical Center, Inc.,
employee conduct "may be so disloyal, reckless, or maliciously
untrue as to lose protection." Thus, "a sharp,
public, disparaging attack upon the quality of the company's
product and its business policies, in a manner reasonably
calculated to harm the company's reputation and reduce its
income" is unprotected. But "an employee's
public criticism of an employer must evidence a malicious
motive," and the "mere fact that statements are false,
misleading or inaccurate is insufficient to demonstrate that they
are maliciously untrue." Also, "the fact that an
employee's statements are hyperbolic or reflect bias does not
render them unprotected."

As the following discussion of these cases shows,
businesses should tread very carefully when disciplining or
discharging an employee for social media related conduct. The
protections given to such conduct as concerted activity are broader
than typically anticipated, and the distinctions between protected
and unprotected conduct can be quite difficult to discern.

In Hispanics United, an employee
(Cruz-Moore) told another employee (Cole-Rivera) that Cruz-Moore
intended to raise issues with the work performance of a third
employee (Ortiz) to the executive director. That evening,
Cole-Rivera posted a comment to Facebook that she had "about
had it!" with Cruz-Moore, and inquiring, "My fellow
coworkers how do u feel?" Several co-workers responded,
making statements like "What the f.... Try doing my job,"
and "Tell her to come do my fucking job." Ortiz
responded as follows: "I think we should give our paychecks to
our clients so they can 'pay' the rent, also we have to
take them to their Dr's appts, and serve as translators (oh! We
do that). Also we can clean their houses, we can go to DSS
for them and we can run all their errands and they can spend their
day in the house watching tv." Cole-Rivera replied:
"Lol. I know! I think it is difficult for someone
[not in our department] to really grasp and understand what we
do. I will give her [Cruz-Moore] that. ...
I'm proud to work at HUB and you are all my family and I
see what you do and yes, some things may fall thru the cracks, but
we are all human :) love ya guys."

The employer discharged Cole-Rivera, Ortiz, and the other
employees who posted the Facebook comments. The NLRB and an
Administrative Law Judge concluded that the terminations were
unlawful because the Facebook posts were concerted activity.
"Employees have a protected right to discuss matters affecting
their employment amongst themselves," and "explicit or
implicit criticism by a co-worker of the manner in which they are
performing their jobs is a subject about which employee discussions
is protected." In addition, "the activities of a
single employee [i.e., Cole-Rivera] in enlisting the
support of fellow employees in mutual aid and protection is as much
concerted activity as is ordinary group activity."

The Facebook posts were concerted activity because
the employees were "taking a first step towards taking group
action to defend themselves against [another employee's]
accusations."

The NLRB and Judge also addressed and rejected the
employer's contention that the Facebook posts were "so
opprobrious as to lose protection under the Act." They
reached this conclusion on the basis that the posts were not made
at work or during working hours, were related to clearly protected
activity, and did not involve any "outbursts."

In contrast to Hispanics United, the NLRB has issued
several advice memoranda finding that social media conduct is not
concerted activity. For example, the employee in Wal-Mart posted the following comment
to Facebook: "Wuck Falmart! I swear if this tyranny
doesn't end in this store they are about to get a wakeup call
because lots are about to quit!" Two co-worker
"friends" responded as follows: "bahaha like!
:)" and "What the hell happens after four that gets u so
wound up???" The employee replied: "You have no
clue ... [my manager] is being a super mega puta! Its
retarded I get chewed out cuz we got people putting stuff in the
wrong spot and then the customer wanting it for that price ...
that's false advertisement if you don't sell it for that
price ... I'm talking to [the store manager] about this shit
cuz if it don't change walmart can kiss my royal white
ass." Another co-worker gave the posts to Wal-Mart, who
suspended the employee for one day (which precluded him from
obtaining a promotion for one year).

While "activity is concerted even if it
involves only a speaker and listener," it is equally true
that "mere griping is not
protected."

The employee's Facebook posts in Wal-Mart were not concerted
activity because "no language suggested that [the employee]
sought to initiate or induce coworkers to engage in group
action," but rather he was "express[ing] only his
frustration," and "none of the coworkers' Facebook
responses indicated that they otherwise interpreted the
[employee's] postings" as initiating a call to action.

In JT's Porch Saloon, the employee
was a bartender who was upset that he had to help the wait staff
serve food but did not share in their tips. In the fall of
2010, he and another bartender discussed this policy, but did not
raise the issue to management. In February 2011, the employee
posted to Facebook complaints that he "hadn't had a rise
in five years and that he was doing the waitresses work without
tips." He also called the restaurant's customers
"rednecks" and stated that he "hoped they choked on
glass as they drove home drunk." Upon discovering the
post, the employer notified the employee – by Facebook
– that he was fired.

Recognizing that "individual activities that are the
'logical outgrowth of concerns expressed by the employees
collectively' are considered concerted" activity, the NLRB
nonetheless found that the Facebook posts were not protected.
While the posts addressed the "terms and conditions of
employment," the employee "did not discuss his Facebook
posting with any of his fellow employees either before or after he
wrote it, and none of his coworkers responded." There
were "no employee meetings" on the matter, no
"attempt to initiate group action," and "no effort
to take the bartenders' complaints" to management.
Finally, the NLRB concluded (without meaningful explanation) that
the "internet 'conversation' did not grow out of [the
employee's] prior conversation with a fellow bartender months
earlier."

The employee in Rural Metro worked for a medical
transport service, and posted comments to a U.S. Senator's
Facebook page about her employer. She complained about low
wages, and stated that the first responders to a particular
incident in which a person had died "didn't even know how
to perform CPR!" The NLRB concluded that the
employer's discharge of the employee did not violate the Act
because the post was not protected. While the employee wanted
to make the Senator "aware that she disagreed with how
emergency medical services were handled," she "did not
think [he] could help her employment situation in any
way." In addition, although the employee "had
discussed wages with other employees in response to [the
employer's] announcement of a wage cap, there was no evidence
that employees had met or organized any group action or desired to
raise wage issues with the employer as a group."

In Martin House, an employee at a
residential facility for homeless people posted the following to
Facebook while at work: "Spooky is overnight, third floor,
alone in a mental institution"; and "My dear client ms 1
is cracking up at my post, I don't know if shes laughing at me,
with me or at her voices, not that it matters." The
employer's discharge of the employee was lawful, because the
employee "did not discuss her Facebook posts with"
coworkers, "none of her coworkers responded," the
employee "was not seeking to induce or prepare for group
action," her posts were "not an outgrowth of the
employees' collective concerns," and the "posts did
not even mention any terms or conditions of employment."

The employee in Monmouth Ocean was a nurse and the
union president, who used Facebook to communicate extensively about
union matters. One of her posts intimated that she and two
others "might withhold care if they were personally offended
by the patients." When confronted about this, the
employee asked how the employer obtained the post, and the employer
told her that a coworker had provided it. The employer
suspended the employee and reported her to the state board of
nursing in response to the Facebook post. The NLRB
acknowledged that "an employer's discipline of an employee
based on website statements related to terms or conditions of
employment" is unlawful, but concluded that the employee's
Facebook post simply "was not linked to working
conditions" and therefore did not implicate concerted
activity.

The NLRB also used that case to address when surveillance of
social media may violate the Act. "Surveillance or
creation of an impression of surveillance" is unlawful.
"An employer creates an impression of surveillance when the
employee would reasonably assume from the employer's statement
that [the employee's protected] activities have been placed
under surveillance," such as "when an employer reveals
specific information about [protected] activity that is not
generally known, and does not reveal its source."
"On the other hand, no impression of surveillance is created
where the employer explains that it obtained the information from
other employees, particularly in the absence of evidence that the
employer solicited information." The employer in Monmouth Ocean did not engage in
actual surveillance, and the NLRB found that it did not give the
employee an impression of surveillance, because it informed her
when she asked that "a concerned employee had produced"
the Facebook post to it.

In contrast to the advice memoranda issued in the cases
discussed above, the NLRB has filed complaints against several
employers for disciplining or discharging employees for social
media conduct, which are discussed in the NLRB's Report. These cases are more consistent
with the outcome in Hispanics United, and show the extent
to which the NLRB will go to protect social media conduct, even in
the face of employee misconduct.

The employee in Karl Knauz was a salesperson at a BMW
dealership. In June 2010, a customer accidentally drove a car
into the pond in front of the dealership, and the employee took
pictures of the incident. Later that week, the employer held
a staff meeting to discuss a sales event to introduce a new car,
including that the dealership would serve hot dogs, cookies, snacks
and water at the event. A co-worker asked why better
refreshments were not being served, and the salespeople discussed
after the meeting among themselves their concern that the
inexpensive fare would send the wrong message. The employee
then took pictures at the event.

The next week, the employee posted to Facebook the pictures of
the car accident and sales event. He annotated the pictures
with comments "reflecting his critical opinion of the
inexpensive food and beverages provided." He also posted
"that he was happy to see that the employer had gone all out
for the important car launch by providing small bags of chips,
inexpensive cookies from the warehouse club, semi-fresh fruit, and
a hot dog cart where clients could get overcooked hot dogs and
stale buns." The employer discharged the employee
because of these posts.

The NLRB concluded that the discharge violated the Act because
the employee's Facebook post was concerted activity. It
reasoned that the posts "related to the employees' terms
and conditions of employment," because "the employees
worked entirely on commission [and therefore] were concerned about
the impact the employer's choice of refreshments would have on
sales." The NLRB also found the employee's conduct
"concerted," because he "told his coworker that he
would put the photographs on Facebook," and by doing so
"was vocalizing the sentiments of his coworkers and continuing
the course of concerted activity that began when the salespeople
raised their concerns at the staff meeting" the previous
week.

The NLRB also rejected the employer's contention that the
employee's conduct was so disloyal that it was
unprotected. It reasoned that the "postings were neither
disparaging of the employer's product nor disloyal,"
because they "did not refer to the quality of the cars or the
performance of the dealership" and "did not criticize the
employer's management."

In American Medical, the employee asked
for, but was not given, a union representative to help complete a
report related to a customer complaint about her work. Later
that day, the employee posted a comment to Facebook from her home
about her supervisor, which drew supportive responses from
coworkers. Specifically, the employee referred to her
supervisor as a "dick" and "scumbag," and
stated, "Love how the company allows a [psychiatric patient]
to be a supervisor."

The NLRB concluded that the Facebook post was concerted activity
because "protest of supervisory actions is
protected." It also found that the employee's
conduct was not so opprobrious as to lose protection, because it
"occurred outside of the workplace and during nonworking
time," was made in the course of engaging in protected
activity, and was "provoked by the supervisor's
unlawful" conduct. The NLRB downplayed the nature of the
outburst, which it characterized as "name-calling," by
reasoning that it "was not accompanied by verbal or physical
threats, and the [NLRB] has found more egregious name-calling
protected."

The final case discussed in the NLRB Report involved employees who discovered they
owed state income tax on wages. One of them raised the issue
and it was scheduled for discussion at an upcoming management
meeting. In the meantime, a former employee posted on
Facebook a criticism about owing taxes because the employer
"could not even do paperwork correctly." One
employee responded to the post by clicking "like."
Another responded that she also owed taxes, and referred to one of
the owners of the employer as "an asshole."

The NLRB found that the Facebook posts concerned a "term
and condition of employment – the employer's
administration of income tax withholdings." The conduct
was concerted because a "shared concern had been brought to
the employer's attention by at least one employee," and it
was scheduled to be "discussed at an upcoming management
meeting," which demonstrated that the conduct
"contemplated future group activity."

The NLRB also found that the posts were not so opprobrious as to
lose protection, because they involved protected activity that took
place "outside of the workplace" and during
"nonworking time." It recognized that the outburst
was "not provoked by any unfair labor practice," but
still downplayed the nature of it, reasoning that the post
"was much less offensive than other behavior found
protected" by the NLRB.

Because most non-unionized businesses are unfamiliar
with the National Labor Relations Act, there is very real danger
that they may unwittingly stumble into legal problems with the
NLRB's protection of social media related conduct. All
businesses should become aware of this area of the law, review
their policies to determine whether they may chill concerted
activity, and adopt social media policies that comply with current
requirements. Businesses also should be very careful when
disciplining or discharging employees for any social media related
conduct, to ensure that the conduct does not involve concerted
activity.

About Cameron G. Shilling

Cam is a partner at McLane, and leads McLane's Privacy and
Data Security Group. He comes from a background of handling
technology, business litigation, and employment matters, and has an
active practice in New Hampshire and Massachusetts. Cam's
expertise in data security includes managing security audits,
preparing and implementing written data security policies,
addressing day-to-day security issues, and investigating and
remediating data security breaches. He has dealt with these issues
under a range of state and federal laws, including the
Gramm-Leach-Blilely Act, Health Insurance Portability and
Accountability Act (HIPAA), Health Information Technology for
Economic and Clinical Health Act (HITECH), Genetic Information
Non-Discrimination Act (GINA), Children's Online Privacy
Protection Act (COPPA), Fair Credit Reporting Act (FCRA), Fair and
Accurate Credit Transactions Act (FACTA), a number of state data
security laws. Cam's expertise in data privacy matters includes
creating and implementing information security policies, advising
employers with respect to workplace privacy, advising clients with
respect to social media, advising companies with respect to
customer and consumer privacy, and handling claims against
companies for invasion of data privacy. He has dealt with these
issues under a number of state and federal laws, including the
Electronic Communications Privacy Act (ECPA), Stored Communications
Act (SCA), Computer Fraud and Abuse Act (CFAA), Fair Trade
Commissions Act (FTC Act), Massachusetts' Privacy Act, state
Wiretap Laws, and a variety of other state laws. Cam graduated from
the Cornell Law School in 1995, Lewis & Clark Colleged in 1992,
and interned for United States District Court Judge Royce C.
Lamberth in Washington, D.C. He lives in Bedford, New Hampshire,
with his wife and two children, and enjoys skiing, hiking and
tennis.

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